The Federal Court in Au Kean Hoe v Persatuan Penduduk D’villa Equestrian [2015] 4 MLJ 204 involves a case where the residents’ association implemented a policy to make non-paying residents operate the boom gates themselves without the assistance of security guards. The key question that arose before the Federal Court was whether the RA could impose such a policy which adversely affected the residents who fail or refuse to pay the relevant maintenance charges.
Brief Facts
The appellant, Au Kean Hoe and his wife were the purchasers and co-owners of a house in a housing estate known as the D’Villa Equestrian. The housing estate had only one entrance and exit road which had two boom gates and a guardhouse.
The respondent was the residents’ association (RA) of the housing estate. In 2011, the RA issued a circular stating that residents who have not paid the security and maintenance charges will have to do “self-service entrance” to the housing estate. This meant that the non-paying resident would have to open the boom gates themselves without the assistance of security guards. The appellant was a non-paying resident and commenced action against the respondent on the grounds of nuisance and that the guard house and boom gates were illegal structures that amounted to obstructions in law. Additionally, the appellant sought an order that the alleged obstructions be demolished.
The appellant was unsuccessful in the High Court and the Court of Appeal. He subsequently obtained leave to appeal to the Federal Court.
Was The Construction Of The Guard House And Boom Gate Illegal?
The appellant contended that based on Section 46(1)(a) of the Street, Drainage and Building Act 1974 (SDBA), the boom gates were illegal as they constituted an obstruction over a public road. The relevant portion of Section 46(1)(a) is reproduced below:
“(1) Any person who -
(a) builds, erects, sets up or maintains or permits to be built, erected or
set up or maintained any wall, fence, rail, post or any accumulation of any substance, or other obstruction, in any public place;
[….] shall be guilty of causing an obstruction [….]”
The Federal Court rejected this argument citing UDA Holdings Bhd v Koperasi Pasaraya (M) Bhd [2009] 1 MLJ 737 where the Federal Court held that Section 46(1)(a) has no application where the local authority has given approval for the alleged obstruction. In the present case, there was no question that Majlis Perbandaran Petaling Jaya (MBPJ) had approved the construction of the guard house and boom gates and that MBPJ had acted within their authority in granting that approval.
Was It Unreasonable To Require Non-Paying Residents To Operate The Boom Gates Themselves?
In relation to this matter, the appellant contended that the decision of the RA to require him and his family to operate the boom gates themselves without the assistance of the security guards was unreasonable and amounted to an actionable nuisance. In responding to this contention, the Federal Court made two important findings.
Firstly, the court held that there is a difference between a situation where an individual was prevented completely from entering their residence and a situation where the individual could still enter their residence albeit in a more inconvenient manner. The first situation could result in an obstruction and an actionable nuisance, whereas the latter situation would not, depending on the circumstances.
Secondly, the court held that the underlying rule is a recognition that individuals live within a community and it is always the balancing of the individuals’ inconvenience against the communities’ interest that is of paramount concern.
It was found that the appellant’s complaint was that he was inconvenienced because he had to engage in self-service to lift the boom gate when entering and leaving the housing estate. The court found that at no time was the appellant or his family prevented or barricaded from entering or leaving the housing estate or their home.
Furthermore, the court considered the wider purpose of the RA’s decision in maintaining the guard house and boom gates which was to ensure the security of the housing estate and its residents. This was a community interest that outweighed the inconvenience experienced by the appellant from having to operate the boom gates himself because he had not paid the relevant service and maintenance fees. This inconvenience was held to be reasonable in light of the need to maintain the boom gates to ensure that security and safety of the residents in the community.
The Federal Court concluded that the inconvenience experienced by the appellant did not amount to an actionable nuisance as it was reasonable to require a non-paying resident to operate the boom gates by themselves.
Developments After Au Kean Hoe
The case of Au Kean Hoe has been applied in a more recent case of Lim Keng Jit (suing in the capacity of an authorised member under s 9(c) of the Societies Act 1996 for Persatuan Penduduk Parkville Jalan PJU 3/32-3/37 Sunway Damansara, Petaling Jaya, Selangor) v Majlis Bandaraya Petaling Jaya [2023] 5 MLJ 716.
In Lim Keng Jit, MBPJ had approved a guarded community concept for the housing estate but had imposed a condition that non-paying residents could not be required to alight from their vehicles to operate the boom gates themselves. The RA applied to MBPJ to remove this condition on the basis of the Federal Court’s decision in Au Kean Hoe. The application was rejected by MBPJ and the RA applied for judicial review. The High Court dismissed the judicial review but the Court of Appeal subsequently ruled in favour of the RA.
The Court of Appeal in their decision applied the ratio in Au Kean Hoe, finding that the larger interest of the community in safety and security had to prevail over the rights of the individual to avoid inconvenience. The court stated that the RA’s decision was necessary to ensure the proper functioning of a security system for the residential area and that it was unreasonable for a non-paying resident to enjoy the benefits of the guarded community without paying a single cent. As a result, the court quashed the decision of MBPJ.
Conclusion
The two cases discussed above illustrate that the courts recognise the fact that individuals in a housing estate co-exist in a community and therefore, errant community members should be expected to experience some level of discomfort or inconvenience if it benefits the interest of the community at large.
Developments in this matter are however still upcoming as the Federal Court has recently granted MBPJ leave to appeal the case of Lim Keng Jit on three points of law, one of which is whether an RA could prevent or impede the access of non-paying residents to public roads through boom gates.
15 August 2024
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